In a May 29 article about 2nd U.S. Circuit Court of Appeals judge and Supreme Court nominee Sonia Sotomayor's work during the 1980s with the Puerto Rican Legal Defense and Education Fund, The New York Times uncritically quoted Curt Levey, executive director of Committee for Justice, claiming Sotomayor's position in the New Haven firefighters case Ricci v. DeStefano “adds to the conviction that this was not accidental, and that she had a very specific agenda here.” But in reporting that “Sotomayor voted to affirm the lower court's dismissal of the [Ricci] case” and quoting Levey's criticism of Sotomayor's “very specific agenda,” the Times did not note that Sotomayor was one of four 2nd Circuit judges who joined an opinion written by one of Sotomayor's colleagues stating that precedent compelled the decision in the case. Nor did the Times mention that Supreme Court Justice David Souter -- whom Sotomayor would replace -- made comments during oral argument that were supportive of the position taken by the 2nd Circuit in the case, in which he identified what he said was a “damned if you do, damned if you don't situation” faced by the city of New Haven in its efforts to comply with Title VII's prohibitions on employment discrimination.

The Times reported: “In the 1980s, the Puerto Rican Legal Defense and Education Fund sued the New York City Police Department, claiming that its promotion exams discriminated against Latinos and African-Americans,” and that the fund's “efforts were backed by the defense fund's board of directors, an active and passionate group that included a young lawyer named Sonia Sotomayor, who this week was chosen by President Obama to join the country's highest court.” Later in the article, the Times wrote:

One of the legal defense fund's most important suits charged that a Police Department promotional exam discriminated against minority candidates. It was filed on behalf of the Hispanic Society of the New York police. The exams, the group charged, did not really measure the ability to perform in a more senior position, and were yielding unfair results: Too many whites were doing well, and too many Hispanics and African-Americans were not.

“We saw the lawsuit as a vehicle to level the playing field,” said Mr. Perales. “It's important to understand that she and the rest of the board, in that context, shared the philosophy that we had to remove the barriers to the advancement of Latinos.”

The suit resulted in a settlement with the city that produced greater numbers of promotions to sergeant for Latino and African-American officers.

Some white officers, however, felt that the settlement was unfair. They said that many white officers had outscored their Hispanic and African-American counterparts, yet were not allowed to fill the spots because of quotas. They sued, and their case, Marino v. Ortiz, reached the Supreme Court, where it failed by a 4-to-4 vote in 1988.

Two decades later, as a federal appellate judge, Ms. Sotomayor was again forced by a volatile case to confront the issue of promotion tests and race. She and her colleagues on the United States Court of Appeals for the Second Circuit were asked to review a ruling on a claim by white firefighters in New Haven, Conn., that they had lost promotions because of their race -- even though they had performed well on the Fire Department's tests.

Judge Sotomayor voted to affirm the lower court's dismissal of the case, and her ruling is behind some of the most intense debate about her selection. Mr. Levey said that the employment discrimination case filed by the defense fund on behalf of Hispanic police officers raised questions about Judge Sotomayor's credibility in the New Haven case. “It adds to the conviction that this was not accidental, and that she had a very specific agenda here.”

But staff writers Raymond Hernandez and David Chen did not point out that Sotomayor and three of her 2nd Circuit colleagues joined a fourth colleague's opinion citing 2nd Circuit precedent in interpreting Title VII, which the 2nd Circuit said was controlling authority in the Ricci case. In that opinion, Judge Barrington Parker wrote (accessed from the Lexis database, emphases added):

At the heart of the dissent from the denial of rehearing en banc is the assertion that there was no Supreme Court or circuit law to guide this district court, or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless, the district court also recognized that there was controlling authority in our decisions -- among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Bushey v. N.Y. State Civil Serv. Comm'n, 733 F.2d 220 (2d Cir. 1984), cert. denied, 469 U.S. 1117, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.

Insofar as the dissent suggests that the plaintiffs produced evidence of a racial classification or the imposition of a quota, I think it entirely mistaken. Although the City acted out of a concern that certifying the exam results would have an adverse impact on minority candidates -- and although, as the panel noted in its decision, the result was understandably frustrating for applicants who passed the test -- the City's response, to decline to certify any of the exams, was facially race-neutral. The City did not classify or confer any actual benefit on applicants on the basis of race. The dissent's citations to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995), and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), are therefore inapposite. See Hayden, 180 F.3d at 49 (distinguishing those cases as “concerned with select affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts.”).

Because there was no racial classification, the plaintiffs bore the burden of persuasion on the issue of discriminatory purpose. Jana-Rock Constr., Inc. v. N.Y. State Dep't of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006). Here, however, there was no evidence of a discriminatory purpose; according to the record evidence, the City was motivated by a desire to comply with, and avoid liability under, Title VII and its implementing regulations. See Bushey, 733 F.2d at 226 (“It is settled that voluntary compliance is a preferred means of achieving Title VII's goal of eliminating employment discrimination.” (internal quotation marks and alteration omitted)); see also Hayden, 180 F.3d at 51 (“A desire to reduce the adverse impact on [minority] applicants ... is not analogous to an intent to discriminate against non-minority candidates.”).

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Moreover, I hardly think that in order to decline to certify the exam results, the City was required to prove, through a validation study or some other means, that its own tests were not “job related for the position in question and consistent with business necessity,” 42 U.S.C. § 2000e-2(k)(1)(A)(i) (defining affirmative defense to prima facie case of disparate impact violation). In fact, our case law explicitly rejects that proposition. See Bushey, 733 F.2d at 226 (disagreeing with the assertion that “before adopting remedial measures” the employer must “prove that [the] prima face case [of a disparate-impact Title VII violation] was not rebuttable through job-related explanations”).

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The plaintiffs were entitled to a careful and thoughtful review of their claims. The panel decided that the district court had given them just that, and thus adopted the district court's reasoning in its per curiam opinion. Nothing more is required.

Moreover, in reporting Levey's criticism that Sotomayor “had a very specific agenda here,” the Times did not point out that during the Supreme Court's April 22 oral argument in the case, Souter asked questions of the firefighters' counsel, Gregory S. Coleman, that reflected understanding of the situation faced by the city of New Haven in trying to comply with Title VII:

JUSTICE SOUTER: The problem, Mr. Coleman, is that -- that the cases you are relying on, it seems to me, are cases in which ultimately what is being judged is a different result in the -- at the end point of the process which was starting. And the problem that I have with -- with using cases like that and -- and essentially the problem I -- I have with your argument is that it leaves a -- a municipality or a governmental body like New Haven in a -- in a damned if you do, damned if you don't situation. Because on -- on the very assumptions that you are making, if they go forward with -- with their -- their hiring plan, they certify the results and go forward with it, they are inevitably facing a disparate impact lawsuit.

If they stop and say, wait a minute, we're starting down the road toward a disparate impact lawsuit and, indeed, there may be something wrong here, they are inevitably facing a disparate treatment suit. And whatever Congress wanted to attain, it couldn't have wanted to attain that kind of a situation.

Why isn't the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again? And I -- I recognize there's got to be a good faith condition, and the -- the good faith can always be attacked. But isn't that the only way to avoid the damned if you do, damned if you don't situation?

MR. COLEMAN: No, I completely disagree with that, Justice Souter. It not simply a matter of good faith. The use of race in government is so -- the Court has been so --

JUSTICE SOUTER: But you make no distinction between race as an animating discriminating object on the one hand and race consciousness on the other. There is no way to deal with a situation like this any more than there is a way to deal with -- with setting lines in voting districts --

MR. COLEMAN: I also --

JUSTICE SOUTER: -- without pervasive race consciousness. That is not unconstitutional, and it seems to me that you are not observing that distinction in -- in your reply.